Court of Appeals of Indiana | Memorandum Decision 20A-DC-845| December 16, 2020 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Andrea L. Ciobanu

Ciobanu Law, P.C.

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Angela Field Trapp

Trapp Law, LLC

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jennifer Spivey,

Appellant-Petitioner,

v.

Charles Spivey,

Appellee-Respondent

December 16, 2020

Court of Appeals Case No.

20A-DC-845

Appeal from the Marion Superior 

Court

The Honorable David J. Dreyer, 

Judge

The Honorable Patrick Murphy, 

Magistrate

Trial Court Cause No.

49D10-1707-DC-29037

Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-DC-845| December 16, 2020 Page 2 of 9

Case Summary

[1] Jennifer Spivey (Wife) petitioned to dissolve her marriage to Charles Spivey 

(Husband). During the proceeding, Wife filed a petition to hold Husband in 

contempt of a provisional order. After a factfinding hearing, the trial court 

entered a dissolution decree in which it valued and divided marital assets but 

did not rule on Wife’s contempt petition. On appeal, Wife argues that the trial 

court erred in conflating Husband’s retirement account with the parties’ 

pensions and in failing to rule on her contempt petition. We agree with Wife 

and therefore reverse and remand.

Facts and Procedural History

[2] Wife and Husband were married in 1984, and Wife petitioned to dissolve the 

marriage in 2017. In October 2017, the parties entered into an agreed 

provisional order that gave Wife “sole possession of the former marital 

residence” and provided that, “[i]n the event of unexpected repairs, [Wife] must 

immediately notify [Husband], so that they can negotiate the repair and/or hire 

contractors to fix it.” Appellant’s App. Vol. 2 at 23. In March 2019, Wife filed 

a filed a petition for contempt alleging that she contacted Husband “on 

numerous occasions regarding [...] unexpected repairs” and that Husband 

“failed to communicate with [her] regarding the repairs.” Id. at 33.

[3] In December 2019, the trial court held a final hearing, during which it heard 

evidence on Wife’s contempt petition and the value of marital assets, among 

other things. At the time of the hearing, Husband was employed with the 
Court of Appeals of Indiana | Memorandum Decision 20A-DC-845| December 16, 2020 Page 3 of 9

United States Postal Service, and Wife was not employed and was receiving 

Social Security Supplemental Income (SSI). Wife and Husband each has a 

vested pension, from which they are not currently receiving payments. No 

evidence was presented regarding the pensions’ present value, but Husband 

testified that his monthly pension payment would be roughly equal to Wife’s 

pension payment plus her SSI payment. Tr. Vol. 2 at 97-98. Husband also has 

a defined benefit retirement account with a value of $272,826.99. Ex. Vol. 1 at 

188 (Respondent’s Ex. K). Husband submitted a list of requests that reads in 

pertinent part,

19. [Husband] works [sic] as a postal carrier for the United 

States Postal Services [sic] for twenty-seven (27) years on the date 

of filing. [Husband] seeks to keep his entire pension earned at 

the United States Postal Service.

20. [Wife] shall keep her pension earned through the Naval 

Aviaonics [sic] for eighteen (18) years of service, plus [Wife’s] 

Social Security payments of $380.000 per month.

21. [Husband] shall receive from his Postal Service Retirement 

Account a total of $155,190.16 from his retirement account [sic]. 

[Wife] shall receive a total of $117,636.83 from his retirement 

account. [Wife’s] counsel shall prepare a Qualified Domestic 

Relations Order for the transfer with [Wife’s] shares paying for 

all of the taxes, penalties and fines for any early distribution.

22. [Husband] agrees that an uneven distribution of the marital 

estate is warranted. [Husband] believes that [Wife] should 

receive an additional $10,000.00 more in assets to reflect any 

future payments of spousal support over the next two (2) years 

prior to [Husband’s] retirement.
Court of Appeals of Indiana | Memorandum Decision 20A-DC-845| December 16, 2020 Page 4 of 9

Ex. Vol. 2 at 34-351 (Respondent’s Ex. HH).

[4] In February 2020, the trial court issued a dissolution decree that reads in 

pertinent part,

26. Personal property values are not in dispute and are reflected 

in Wife’s exhibit #11 and Husband’s exhibit V, both 

incorporated by reference, attached hereto, and made a part of 

this Order....

27. Each party has a vested pension, and combined value of 

them is $277,826.99. The disparity in respective values is 

$37,554, half of which, in order to equalize the available 

retirement funds to each party, is $18,777. Such is the amount 

required by this Court to be allocated by Husband to Wife of his 

USPS pension via Qualified Domestic Relations Order within 

thirty (30) days of this order. Wife’s counsel to prepare QDRO.

28. The Court adopts [Wife’s] allocation of assets and liabilities 

contained in Wife’s exhibit #11, except required [sic] Husband to 

assume responsibility for the $10,000 loan from his parents.

29. This division creates a net allocation advantage to Wife in 

the amount of $5314, which the Court further includes as a 

difference justified as part of temporary spousal maintenance.

30. The Court determines that fair and reasonable temporary 

spousal support of $100 weekly [to] Wife until Husband retires, 

and Wife begins to receive her portion of the USPS retirement 

(referenced in paragraph #27 above). Husband may also opt to 

pay this in a lump sum via deduction from his pension plan at the 

1 Unlike the first exhibit volume, the second volume’s handwritten pagination does not match the PDF 

pagination, which we have cited here.
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recommended $10,000 figure as temporary spousal maintenance 

instead of a weekly amount.

Appealed Order at 4-5. The decree says nothing about Wife’s contempt 

petition.

[5] Wife filed a motion to correct error, which she amended to read in pertinent 

part as follows:

3. That in the Decree of Dissolution, this Court mischaracterized 

the Parties’ pensions and defined benefit retirement accounts. 

Specifically, this Court referred to the Parties’ [sic] as having 

vested pensions totally [sic] $277,926.99 [sic].

4. That Husband has a TSP defined benefit account which 

totaled $277,926.99 [sic]. Prior to the hearing, Wife did not have 

the value of Husband’s TSP and therefore, it was left off of her 

proposed asset/debt distribution spreadsheet and a request was 

made to split the account equally. Husband included the TSP on 

his spreadsheet; however, showed an unequal distribution of the 

TSP which then gave Husband $37,554.00 more of his TSP than 

Wife. Wife believes that this Court misunderstood the testimony 

in this matter and mistakenly viewed Husband’s spreadsheet to 

show the retirement accounts listed as the total retirement 

accounts when it was only showing Husband’s proposal on how 

his own TSP would be divided.

5. That in addition to Husband’s TSP, both Parties had 

pensions. Husband’s monthly pension payment is more than 

Wife’s monthly pension payment. Husband requested at the 

hearing that each Party keep his or her own pension. Wife 

requested at the hearing that each pension be divided equally due 

[to] Husband’s pension being substantially more than Wife’s.

6. That this Court adopted Wife’s Exhibit 11 with one change 
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which was to reallocate [Wife’s] debt to Husband’s parents over 

to Husband. Exhibit 11 was Wife’s spreadsheet regarding 

assets/debts and did not include the TSP or the pension.

7. That Wife believes it was this Court’s intention based on the 

wording of the order to accept Wife’s Exhibit 11 with the one 

change regarding the debt to Husband’s parents and that the 

Court further attempted to equally divide the TSP and pensions.

8. That Wife respectfully requests that this Court enter an order 

correcting the error regarding the TSP and pensions and enter 

what Wife believes is the intention of the Court which was to 

divide both the TSP and the pensions equally.

Appellant’s App. Vol. 2 at 44-45. The trial court denied Wife’s motion. Wife

now appeals.

Discussion and Decision

Section 1 – The trial court abused its discretion in conflating 

Husband’s retirement account with the parties’ pensions.

[6] Wife contends that the trial court conflated Husband’s retirement account with 

the parties’ pensions and thereby improperly left the pensions out of the marital 

estate. The division and distribution of marital assets lie within the trial court’s 

sound discretion. Cohen v. Cohen, 120 N.E.3d 1083, 1085 (Ind. Ct. App. 2019), 

trans. denied. “On appeal, we review the trial court’s decision only for an abuse 

of that discretion.” Id. “A trial court abuses its discretion only when its 

decision is clearly against the logic and effect of the facts and circumstances 

before the court.” Id.
Court of Appeals of Indiana | Memorandum Decision 20A-DC-845| December 16, 2020 Page 7 of 9

[7] Our factual summary clearly shows that the trial court conflated Husband’s 

retirement account with the parties’ pensions, and in doing so it improperly left 

the pensions out of the marital estate. Indiana Code Section 31-15-7-4(a)

provides that the trial court in a dissolution action “shall divide the property of 

the parties, whether: (1) owned by either spouse before the marriage; (2)

acquired by either spouse in his or her own right: (A) after the marriage; and (B) 

before final separation of the parties; or (3) acquired by their joint efforts.” 

“Indiana law has been uniformly interpreted as requiring the trial court to 

divide ‘all’ the property of the parties, specifically prohibiting the exclusion of 

any assets from the scope of the court’s powers to divide and award.” Nill v. 

Nill, 584 N.E.2d 602, 604 (Ind. Ct. App. 1992), trans. denied.

[8] Indiana Code Section 31-15-7-4(b) provides that the court “shall divide the 

property in a just and reasonable manner[.]” The court may do so by dividing 

the property in kind; “setting the property or parts of the property over to one 

(1) of the spouses and requiring either spouse to pay an amount, either in gross 

or in installments, that is just and proper”; “ordering the sale of the property 

under such conditions as the court prescribes and dividing the proceeds of the 

sale”; or ordering the distribution of pension benefits “that are payable after the 

dissolution of marriage, by setting aside to either of the parties a percentage of 

those payments either by assignment or in kind at the time of receipt.” Id.

[9] “The court shall presume that an equal division of the marital property between 

the parties is just and reasonable.” Ind. Code § 31-15-7-5. This presumption 

may be rebutted by a party who presents relevant evidence that an equal 
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division would not be just and reasonable, such as evidence regarding “[t]he 

contribution of each spouse to the acquisition of the property,” “[t]he economic 

circumstances of each spouse at the time the disposition of the property is to 

become effective,” “[t]he conduct of the parties during the marriage as related 

to the disposition or dissipation of their property[,]” and “[t]he earnings or 

earning ability of the parties as related to: (A) a final division of property; and

(B) a final determination of the property rights of the parties.” Id. “The 

statutory factors are to be considered together in determining what is just and 

reasonable; any one factor is not entitled to special weight.” In re Marriage of 

Lay, 512 N.E.2d 1120, 1125 (Ind. Ct. App. 1987).

[10] In its dissolution decree, the trial court did not specify whether an equal 

division of the marital property would be just and reasonable, and thus we are 

unable to conclusively divine the court’s intent. The decree, which borrows 

heavily from Husband’s list of requests, does not give a reason for dividing 

Husband’s retirement account unequally,

2 and it does not actually value or 

divide the pensions at all.

3

 In sum, we hold that the trial court abused its 

discretion in conflating Husband’s retirement account with the parties’ 

pensions, and therefore we reverse and remand with instructions to amend the 

decree accordingly. On remand, the trial court may choose to receive evidence 

2 Husband’s testimony suggests that he proposed an unequal division based on Wife’s alleged dissipation of 

marital assets, but the record is ambiguous on this point.

3 Consequently, we are unpersuaded by Husband’s reliance on Quillen v. Quillen, 671 N.E.2d 98 (Ind. 1996), 

and In re Marriage of Church, 424 N.E.2d 1078 (Ind. Ct. App. 1981).
Court of Appeals of Indiana | Memorandum Decision 20A-DC-845| December 16, 2020 Page 9 of 9

regarding the present value of the parties’ pensions, or it may rely on existing 

evidence regarding the projected amount of the monthly pension payments. 

Regardless, the amended decree must indicate whether an equal division of the 

marital property is just and reasonable.

Section 2 – On remand, the trial court must rule on Wife’s 

contempt petition.

[11] Wife also contends that the trial court erred in failing to rule on her contempt 

petition. This was clearly an oversight on the trial court’s part, and therefore on 

remand the court must rule on this issue.

[12] Reversed and remanded.

Najam, J., and Riley, J., concur.